Professor Fires Off Lengthy Email In Defense Of Student Forbidden From Handing Out Copies Of The Constitution

from the questioning-the-status-quo,-and-the-complacency-that-allows-it-to-continue dept

On Constitution Day (Sept. 17th), a student of Modesto Junior College, Robert Van Tuinen, was prevented by Modesto Junior College administration from handing out copies of the Constitution. The college apparently believes free speech is limited to a single small concrete slab on campus, generously named the "Free Speech Zone." Contrary to the First Amendment (and the state's laws governing public university policies), MJC restricts free speech to no more than two people per day, subject to approval of the administration.

Professor William J. Holly was kind enough to forward his entire email to me, as well as provide some additional info on California laws governing schools and students' First Amendment rights, as well as this bizarre and tense interaction with school security over the supposed rule changes President Jill Stearns said were underway.

I do not know what rules are now in effect. Last week I stopped by campus security and asked what the rules now were, and he referred me to ASMJC office on the other campus. I said he must know what the rules are since he was responsible for enforcing the rules. He kept pushing the paper with the name of the office on it, saying he was referring me to that office. It got a little tense because I kept saying he must know the rules and should be able to let us know what the rules are. Finally, he said he was not allowed to discuss this with anyone because they are under litigation. Stearns says the rules are being reviewed. Does that mean there are no rules?

Stearns' statement says the college is "evaluating its policies and procedures." It also says this:

There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.

There may not be one now, but that requirement was certainly in place back in September.

It also says this.

To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse.

Hilarious. Pity the poor people who took offense at Van Tuinen being accosted by a campus cop and repeatedly told he'd need to get on the waiting list for the Freedom Slab and mistakenly believed it violated his First Amendment rights.

Holly does a wonderful job in his email dismantling Stearns' non-apology.

[I]t is unclear what she means when she addresses "those who were offended by the appearance of censorship." Van Tuinen was not subjected to the mere "appearance of censorship." He was silenced and he was prevented from distributing his literature. That is outright censorship, pure and simple, whether it resulted from a misunderstanding or not.

But Holly's letter is more than just a deconstruction of Stearns' statements and MJC's dubious policies. It's also a wakeup call directed at his colleagues, many of whom were either unaware of this event or simply stood by and let incident pass by not remarked on.

Dear Colleagues:

The paper attached above (Destructing Causal Deconstruction) exposes some of the absurdities that are committed in the name of "Deconstruction." I think it is a good read -- clear, amusing, imaginative, and instructive. If you ever wondered what "deconstruction" is really about, you would be hard pressed to find a better introduction. One question that I cannot answer, however, is whether or not I would be arrested by a security officer if I insisted on wandering about the quad on our campus, handing out copies of this paper and discussing it with those who might be interested in the topic. This is not a silly question...

Nearly a month ago (Sept. 17th) one of our MJC students, Robert Van Tuinen (also a veteran), was trying to pass out copies of our federal Constitution on Constitution Day. He was prevented in this exercise of free speech by an MJC security officer, and then by an official at the office of Student Services who told him he was allowed freedom of speech and the right to pass out literature only in certain tiny restricted areas on our campus, and then only after booking a reservation -- which would not be available until the following month!

I am puzzled why there has been no faculty outcry over this ugly incident. Why are we not standing up for our student who only wanted to exercise his constitutional right to free speech? Do we really want to be known nationwide as the college that wouldn't let a veteran pass out copies of our Constitution on Constitution Day?

Holly's not being facetious about "nationwide." The story was picked up by the Huffington Post, the Washington Times, FOX News, the L.A. Times, along with numerous other well-read sites like Reason, the Daily Caller and National Review Online. But Modesto Junior College itself? Apparently it isn't interested in providing current or prospective students (or faculty, for that matter) with anything more than the president's statement.

The First Amendment in pertinent part says, " Congress shall make no law … abridging the freedom of speech, or of the press …" Some have taken this to be a right you have against the Federal Government, but not (say) against the State of California (as though the rights you thought you had simply in virtue of being a citizen of the United States could be nullified by the particular state in which you live). Happily, the point is largely moot because the constitution of California has its own guarantees of rights that largely parallel the U.S. Constitution Bill of Rights -- including separation of church and state, etc. Guarantees of freedom of expression even exist in parts of the California Code of Education, and even the University of California has a constitution that holds out these rights, and even individual campuses have their own codes regarding such things as Academic Freedom. At CSUS and at PLU, the rules that claim Academic Freedom for faculty make clear that such freedom should extend equally to students!

66301. (a) Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

Considering Van Tuinen's lawsuit, the directly-following subsection is also relevant.

(b) A student enrolled in an institution, as specified in subdivision (a), at the time that the institution has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney's fees to a prevailing plaintiff in a civil action pursuant to this section.

Given the state law governing the public college, it would appear that MJC's free speech policies are in violation of state law, not to mention the state's constitution, even granting a very generous reading of "time, place and manner" wording.

Holly also questions the "formal apology" extended by the school to Van Tuinen. Whatever it was (and no one has seen it but Van Tuinen and administrators), it's clearly not sufficient.

[W[e are told that a formal apology has been provided the student. It seems to me, however, that apologies in such cases are best made in public. I think Van Tuinen would want a published apology, a public admission that MJC had no right to deny him the exercise of his liberties that they did, and a promise that no other students would have their rights similarly violated. And, since the violation of the rights of one of our fellow citizens violates us all, I believe that we all are entitled to see a copy of that apology, to see the particulars of the concessions made, and to see in what manner those liberties now are affirmed that then were denied.

As Holly points out, the fact that Van Tuinen is proceeding with his lawsuit is a good indicator that the apology offered wasn't satisfactory.

Holly then goes further, suggesting what should be done, not only to satisfy Van Tuinen, but to make sure other students know their rights are protected and ensure this sort of restriction doesn't make its way back into the school policies in the future.

In one interview, [Van Tuinen] has said that he is not doing this for the money. I think what he wants is a civil rights victory. That should be easy to give him, especially if President Stearns is right this all has just been a misunderstanding…

If he doesn't really care about money, if he just wants public acknowledgement that he was wronged, perhaps we should offer this: Buy him a couple thousand copies of the Constitution or of the Bill of Rights, and offer to make the individuals he has sued do community service that is relevant. Make them each do twenty hours of community service that consist of passing out copies of the Constitution and explaining to people the importance of everyone's right to free speech. That ought to make him whole. And, to show my sincerity, I hereby offer to do 20 hours of such community service myself. Perhaps I too bear part of the responsibility here, because this one flew under my radar too. I did not check to see if my students' rights to free speech were properly protected. Sometimes the implications of rules just do not strike us until we see them enforced.

Summing things up, Holly asks what some famous free speakers would run into if attempting to speak on MJC's campus.

Now, if you do not like my suggestion that we should have a policy of completely free, unfettered and unqualified freedom of thought and expression on this campus, just ask yourself this one question: Suppose that Thomas Paine, the great pamphleteer ("These are the times that try men's souls…") were to come to MJC. Would you make him show his ID or make an advance appointment? Would you sic campus security and Student Services on him before allowing him to distribute his literature? Hell, what would you do if Jesus came? Would you have Student services tell Him he needs an appointment in advance, that the free speech zone is booked up until next month, and that He needs to confine his speech to the designated free speech zone areas? I say, Let Freedom Reign!

Holly's effort to light a fire under his colleagues is admirable. Many people are too willing to defer to existing policy, especially if it doesn't apply directly to them. Van Tuinen pushed back against an unconstitutional policy and has brought the idiocy of campus "Free Speech Zones" back into the national limelight. Holly doesn't suggest throwing away all restraints on speech (exempting classrooms and faculty offices in order to prevent disruption of educating), but his view of what a "Free Speech Zone" should actually include covers far more area than MJC's infamous concrete slab.

The entire email (embedded below) is worth a read, as is his Deconstructing Casual Deconstruction. Holly's defense of students' rights is a rarity in institutes of higher learning, many of which seem to believe the restraint of speech somehow creates better students.

Remember President Bush? He wanted all protestors out of sight at Protest Zones, always to be out of the eye of the greater public and his cavalcade.

Remember the NSA? The NSA, the CIA, the FBI, right on down to the police departments in most major cities are not too big on getting permission first. They work the other way. Get the stuff and then figure out how to make it legal.

It seems we have again a demonstration once again of the two tier society now in place.

Fixing the unfixable

1. Fire all US Senators and Congress-people.2. Fire all state senators and representatives.3. Fire all state governors and their backups... ad absurdum 4. Fire the US President and all members of his/her cabinet.5. Retire the Joint Chiefs of Staff of the US military, their subordinates, and anyone that has anything to do with the NSA, CIA, DHS, et al.6. Start again with the raw US Constitution.

Re: Re: Fixing the unfixable

Re: Fixing the unfixable

Your suggestion would make things much worse.

and .....- There are a few in government that do not totally suck.- Present laws at the federal do not allow for the firing (recall) of elected officials.- What is "the raw US Constitution", you mean without the bill of rights?

Re: Fixing the unfixable

While We the People have much to do to repair the century plus damage We've done to Our Constitution, I hope that it's more easily achievable than Spiff's lenghty list of terminations.

It will still take some doing, but I feel We should begin by fixing what We've obviously broken on Our path to this moment, particularly:

The surest way to return the control of the federal government to We the People is﻿ to realize that Article I, Section 2, of the U.S. Constitution, which requires that “The Number of Representatives shall not exceed one for every thirty Thousand,” trumps the Apportionment Act of 1911, which “sets” the number of members of the United States House of Representatives at 435.

And while We're at it, the States should appoint their Senators; We already have Our House, let's give them back theirs.

Re: Re: Fixing the unfixable

"the States should appoint their Senators"

Do you have any rational for repealing the seventeenth amendment or is it simply a talking point being spread across the intarwebs? What other amendments do you want to repeal, I'm sure there are more - amirite?

If one wants to do some real damage control, I suggest that a starting point is to stop gerrymandering, encourage eligible citizens to vote and stop the bullshit efforts to disenfranchise those who oppose your political beliefs.

There is very little voter fraud, but multitudes of electoral fraud. Efforts that encourage the latter being sold as efforts to stop the former fool no one.

Re: Re: Re: Fixing the unfixable

I'm sorry, I thought that the idea of trying to return our federal government to its original design, because what We've changed it into doesn't seem to be working as well as it might, was clearer in my other post.

Returning to a maximum of 30,000 Citizens per representative would give each of Us much more proportional representation than the current ratio of ~729,000:1 does; similarly, returning the appointment of the Senators to the States from their current popular vote would restore the original representation in the Senate and undo another change that We've made along the way which has gotten Us to Our current sorry state.

Some will complain that would mean We'd go from 435 representatives to more than 10,000, and where would We put them all? Well, We build aircraft carriers and spend billions on other things, so I think that We could build them a small town in the middle of nowhere.

I typed nothing about gerrymandering districts or disenfranchising those with different views; if anything, I'm talking about the opposite: dividing districts into groups of 30,000 Citizens so that each of Our views has more of an impact on the person elected to represent those views in the Congress.

Groups of 30,000 would be more jealous of and watchful over the integrity of their votes than the current ~729,000 per representative do today, because each vote has more impact and thus “value,” and there are magnitudes fewer elected officials in State governments than Citizens voting for Senators now, so the problem of dilution by ~3.17 million Citizens per Senator would likewise be corrected (and secondary to which group is actually being represented), so all types of voting shenanigans would likely decline as each vote commands a larger portion of each elected servant's attention.

Re: Re: Re: Re: Fixing the unfixable

Repeal of the 17th amendment would do nothing to address present problems, it would however return those problems it "fixed".

Those that attempt to sell the idea of repealing amendments typically do not stop at one. They only like one and would repeal the rest if given the chance. They have sidestepped most of them already. And yet, that is not you - ok.

I suggested a starting point to address present problems, seems you disagree, but did not say why. Apparently, repeal is a panacea which save us from that which you see as a problem, screw everyone else - right?

Re: Re: Re: Re: Re: Re: Re: Fixing the unfixable

Since you can't be bothered to type an answer to my question, I won't be bothered to look up anything which cannot possibly justify the fundamental modification of the power relationships established in Our Constitution between the People, the States, and the three branches of the federal government.

Whatever those problems were imagined to have been could certainly have been handled in a way that did not require a structural modification of Our republic.

I have yet to read any substantive argument against the two improvements that I suggested previously, or against my premise that those changes would move U.S. closer to the original design and intent of the Framers, thereby resolving many of the problems that We have inflicted upon Ourselves over the last 100+ years, or against that increase in proximity being a desirable outcome on balance, so, barring a better effort, this will be my final post in this thread.

Re: Re: Re: Re: Re: Re: Re: Re: Fixing the unfixable

Do note he's an adjunct faculty

and adjunct faculty are as a whole a very marginalized group.

It is very brave of him to stand up for a student, because he's essentially guaranteed that he won't ever work again.

I'll repeat myself: adjunct faculty do not have tenure and cannot get tenure. By contradicting the administration, Prof. Holly has invited retaliation upon himself, and he has next to nothing for protection.

Re: Do note he's an adjunct faculty

Re: Re: Do note he's an adjunct faculty

I'd sure as heck vote for him. We need people in charge that believe in the principles this country was founded on, and more importantly we need people in charge who are willing to risk their necks for what they believe in; men and women who absolutely will not back down, who refuse to crumple under pressure.We can't have a repeat of Obama, where a Constitutional scholar campaigns against government surveillance, and swiftly becomes a pale shadow of his former vibrant self; a broken man who lets his administration run wild.We need leaders who abhor corruption and tyranny, and who are willing to put their reputations, their livelihoods, and their very lives on the line to set things right, because apparently that's what it's going to take to restore rule of law in this country.

Re: Do note he's an adjunct faculty

The rules aren't as stupid as you think.

University is a place of learning. Free speech is fundamental to the US way, but at the same time, too much free speech is almost self defeating.

Since students are prone to taking up causes, you can imagine a campus where students are handing out pamphlets all day, every day... harassing people everywhere on campus with petitions, hand outs, speeches, and so on.

You can also have issues of conflict - abortion rights v anti abortionists would be a good example. You can imagine these two groups setting up right next to each other and having a yelling match that quickly degrades.

As a result, there does have to be some control. It would not be unusual for a university to limit "free speech" style activities such as handing out screeds (even if they happen to be the constitution) to a limited area, perhaps even requiring people to register and agree to clean up the mess made as people drop the hand outs all over the place.

Before you think of that as going to far, consider: They could obviously and safely block such activities from happening in class rooms, they could certainly limit it from happening inside the buildings, at events (such as sporting events), and so on. It would be no different from saying you cannot stand in the middle of your local city hall handing out things. "Public institution" does not imply that the public has full and free reign at all times in those facilities.

The student is welcome to express himself and exercise his free speech in the areas designated for such activity at the discretion of those who run the facility. He can stand on the sidewalk outside of the facility and express his free speech rights in whatever way he likes, without restriction. If he wanted to hand out the constitution in his local city hall, he would like have to "ask permission", and might get rejected.

Can you imagine if the Senate allowed anyone and everyone to stand in the chamber and hand out documents? It's a public facility, but it's not "public". Understanding the difference goes a long way to undertanding why the untenured professor is likely going to be ignored.

Re: Re: The rules aren't as stupid as you think.

Your point doesn't make sense, unless you think that the first amendment grants you unlimited free speech at all times in all places no matter what you do, say, or where you say it.

It's just not he case.

Take a university with 2000 students. Without control over who is passing out pamphlets, setting up booths, collecting signatures, and even selling things you would have a mess. Forget it being a campus, it would be turned into a political flea market.

Keeping the spaces for this type of activity limited on campus isn't about curtailing free speech, it's about balancing free speech with the right for students and faculty to enjoy the campus and their lives without being constantly harassed by people who want to hand something out.

The real issue with the US (and many other places these days) is that people are pushing very hard on their personal and individual rights without considering the implications for society as a whole. Your right to free speech should not impact another student's right to freedom and liberty.

It also points out a general logic fail by those who look at this story as only about "free speech". Everything in life exists as part of a system, not in abstract. You cannot extract the simple "free speech" issue here without considering the impact on the the other side. The professors letter is perfect if you don't consider how it would impact others.

Good for him.

Addition to suggested community service.

I'm not sure what subject Prof. Holly teaches but from the looks of his writing I suspect it is either law or political science or something similar and if so, Stearns should be required to attend a class on the subject taught by Prof. Holly.

Re:

Constitutional rights are not worth the paper they are written upon.

Well, it is true. Your constitutional rights are worthless because there is no penalty to anyone or any entity that violates them. The case of MJC's violation of the First Ammendment is a perfect example thereof.

Suppose you rob a bank. That's against the law. Associated with the prohibition are penalties for violating the law. You are going to pay restitution, pay a fine and will likely go to prison.

Suppose you prohibit some activity clearly spelled out in the Constitution as a "Right". What happens. Somebody or entity goes to court to get you to stop doing that. Courts hear the case as a "civil" matter. The court (if it is not coerced by the USDOJ or some other deep-pocketed person or entity) orders you to stop doing that and (only maybe) makes you promise to stop doing that. -- End of story.

What should happen is that you (the entity or person, by name) should be charged with Treason! Yes, treason. You have tried to subvert the supreme law of the land: The US Constitution. If convicted, you should do at least 20 years (every goddamned minute of it) in SuperMax, have all your assets confiscated and barred from ever working in any government agency of any sort ever again. -- You have committed Treason by subverting the US Constitution.

Re: Constitutional rights are not worth the paper they are written upon.

Civil matters are about monetary damages. The problem is that even if the plaintiff wins the case, what is the monetary value of the damages caused by the defendant? In order to receive damages the defendant has to prove such damages. Of course the plaintiff can request punitive damages but courts are much more reluctant to award those especially when the defendant is a publicly funded or government entity and they aren't appropriate unless the defendant can prove that it wasn't simply a "misunderstanding" of some sort. The defendant needs to prove that the violation was an intentional egregious attempt to deprive someone of a guaranteed right. In the cases where there have been large judgements awarded, this is most likely what has happened. If there were statutory damages, it would be easier to get a judgement however that would create other problems as people would start flooding the courts with claims over every minor incident in the same ways personal injury attorneys do with accident claims forcing all kinds of government and publicly funded entities to expend resources defending frivolous lawsuits by people out for a pay day in the form of a statutory damages award.

Also the reason it is almost always a civil case is that is the only type of case a civilian entity or individual can file. The DA has to file criminal charges. And in cases like this, it is the policies of the school that are in violation. Even if a criminal case were filed and won, you can't arrest the school. You can fine the school, but is that really productive? For the money to go to the individual affected, it would need to be a civil case.

I agree something needs to be done but I am not sure what. Treason has a specific legal definition that this doesn't even come close to meeting.

"Your suggestion would make things much worse."

did it make things much worse when we completed removed the existing gov't back in 1776? i agree that it certainly made things much more tenuous in the short term, but since then we have enjoyed over 200 years of unequaled civil liberty because of that action. only recently (past 20 years?) has a serious erosion of those liberties taken place.

i remember an old comic picturing a puppy dog sitting on a bench crying huge tears. another asked him why he was crying, he replied "because i'm sitting on a nail." when asked why he didn't move off of it, the puppy dog said "because it doesn't hurt bad enough yet." this seems fairly analogous our nation's situation.

bah

Freedom of speech

A true test of freedom of speech would leave undiscussed whether or not the exerciser is a "veteran" (should veterans have more more civil liberties than a citizen?) or whether or not his speech pertains to that completely meaningless void document the US "Constitution".

We all know nobody in the US government apparatus gives a fuck about the US Constitution so why not make this a little bit more interesting? How about a draft dodger distributing animal pornography, or a naked shemale flyering nazi leaflets? How about some flag trampling communists armed with automatic weapons?

Will the professor stand up for freedom of speech then?

Because the only true freedom of speech involves tolerating what you or you find most offensive, whatever it is that insults you most.

That's what freedom of speech is for. To protect unpopular speech. As soon as 'decency' and 'privilege' (a veteran, wooo!) mix in, it's a nonsense discussion again, as far as I'm concerned.

I'm pro freedom of speech, but this sanctimonious posturing with a veteran (morally sacrosanct) passing out copies of the Constitution (patriotically unassailable) is weak and impotent.

Re: Re: Freedom of speech

Well, that's better, yes. But the overarching question for me is: how ready and willing is everybody to follow through, all the way, with the concept of freedom of speech?

Because that, in the end, is going to protect dissidents when they're voicing opinions arousing the ire of the jingoists. There's nowhere to hide when people feel the urge to postpone debate about civil liberties to deal with the 'traitors' first. That's what always happens.

All that aside, this incident, another in a very long line, illustrates yet again how meaningless American rhetoric about freedom is and how hollow and sickening the pledge to 'export democracy'.

The biggest danger to American freedom, today, are security and law enforcement, military and intelligence. The fact that a comment such as this will likely (if I'm not already) put an asterisk behind my name in some totalitarian database further attests to this.

Re: Re: Re: Freedom of speech

"Freedom of Speech" is part of the Bill of Rights. This states that the (federal) government is not allowed to interfere with said speech. It says nothing about protecting people from the aftermath of their speech.

So yeah - I suppose you can $ay anything you want, but there may be consequences and you had better not whine about it because no one wants to hear that shit.

Re: Re: Re: Re: Re: Freedom of speech

Re: Freedom of speech

A true test of freedom of speech would leave undiscussed whether or not the exerciser is a "veteran" (should veterans have more more civil liberties than a citizen?) or whether or not his speech pertains to that completely meaningless void document the US "Constitution".

I think the point is that if even a veteran handing out the Constitution is censored, there's a very serious problem. That means (I hope) that it goes beyond censoring speech that the authority doesn't like to just censoring any old speech for no apparent reason. On the other hand, is that actually worse for free speech? Perhaps not.

Re: Freedom of speech

this excerpt from the US Declaration of Independence might be a good test measuring today's true Freedom of Speech:

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government"

seems as though from the beginning of our nation we have made provision for 'firing' our government and 'hiring' new.

Not about the money?

What is interesting about this case, while it certain has merit, is that Mr. Van Tuinen stated he wasn't doing it for the money? Very interesting, as rumour has it a payout of $50,000 was paid out for this violation, and no payment in kind has been made to veterans charities, free speech advocates, the ACLU, etc. Not for the money? I think not.